Letter Rogatory
Encyclopedia
A letter rogatory or letter of request is a formal request from a court
to a foreign court for some type of judicial assistance. The most common remedies sought by letters rogatory are service of process
and taking of evidence.
s that invoke universal jurisdiction
, granting their courts ubiquitous domain. Therefore a person seeking to take an action against a person in another country will need to seek assistance from the judicial authorities in the other country. This is of course assuming the court in his own country has jurisdiction to hear the case matter. As a hypothetical example, Alice in the United States
wishes to sue Roberto in Argentina
. Alice issues her summons
in a U.S. court, and must then petition a court in Argentina by means of a letter rogatory to serve the process on Roberto.
The use of letters rogatory for purposes of service of process to initiate court action is now largely confined to the Americas, as between countries in Europe, Asia, and North America, service of process is effected without resort to letters rogatory, under the provisions of the Hague Service Convention
.
of documents.
Courts only have power to subpoena
witnesses from within their own country. So for example Alice in the U.S. could not summon Jean from France
to the U.S. courthouse. Instead the U.S. court would issue a letter rogatory to a French court, who would then examine Jean in France, and send a deposition
back to the requesting court.
Insofar as requests to United States courts are concerned, the use of letters rogatory for requesting the taking of evidence has been replaced in large part by applications under 28 U.S.C. section 1782, or Section 1782 Discovery
.
In many cases, the witness is willing to provide the testimony. However, the target court may compel the testimony of a witness who is unwilling to appear.
Generally, the target court will agree to the request unless it violates a policy of the target jurisdiction. For example, in the United States, it is usually appropriate in a civil case to depose every available witness, while in Canada
, you may only depose one witness from each party. However, a Canadian court would most likely agree to the pre-trial deposition of a witness who could be compelled to testify in the United States.
channels, which could make the whole process very slow. There have been various international conventions in regard to service of process and taking of evidence. One of the earliest conventions to simplify the procedure of Letters Rogatory was the 1905 Civil Procedure Convention, signed at The Hague
. Drafted only in French
, it was only ratified by 22 countries. Later conventions, created after the institution of the Hague Conference on Private International Law
, drafted in both English
and French commanded more support. The Hague Service Convention
, ratified in 1965, enabled designated authorities in each of the signatory states to transmit documents for service to each other, bypassing the diplomatic route. This convention has been ratified by 60 states including the United Kingdom
and the United States
, neither of whom had ratified the 1905 convention. The Hague Evidence Convention
, ratified in 1970, formalised procedures for taking of evidence. This convention has been ratified by 43 states. For situations exclusively among Member States of the European Union
, two regulations, 1348/2000
and 1206/2001
superseded the two Hague Conventions. These two regulations apply to each of the Member States of the European Union with the exception of Denmark
which opted out
.
For countries not signed up to any convention, the letter rogatory is still used. So for example, a plaintiff
in the Netherlands
which is signed up to the Hague Service Convention would still need to issue a letter rogatory to Brazil
, as the latter has not signed the Convention.
The European Convention on Mutual Assistance in Criminal Matters (CETS No. 030), open for signature by the Members of the Council of Europe, in Strasbourg, on 20 April 1959, stipulates that parties agree to afford each other the widest measure of mutual assistance with a view to gathering evidence, hearing witnesses, experts and prosecuted persons, etc.
The Convention sets out rules for the enforcement of letters rogatory by the authorities of a party ("requested party") which aim to procure evidence (audition of witnesses, experts and prosecuted persons, service of writs and records of judicial verdicts) or to communicate the evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of another party ("requesting party").
The Convention also specifies the requirements that requests for mutual assistance and letters rogatory have to meet (transmitting authorities, languages, refusal of mutual assistance).
Court
A court is a form of tribunal, often a governmental institution, with the authority to adjudicate legal disputes between parties and carry out the administration of justice in civil, criminal, and administrative matters in accordance with the rule of law...
to a foreign court for some type of judicial assistance. The most common remedies sought by letters rogatory are service of process
Service of process
Service of process is the procedure employed to give legal notice to a person of a court or administrative body's exercise of its jurisdiction over that person so as to enable that person to respond to the proceeding before the court, body or other tribunal...
and taking of evidence.
Service of process
Courts may serve documents only to individuals within the court's jurisdiction. One exception to this rule is stateSovereign state
A sovereign state, or simply, state, is a state with a defined territory on which it exercises internal and external sovereignty, a permanent population, a government, and the capacity to enter into relations with other sovereign states. It is also normally understood to be a state which is neither...
s that invoke universal jurisdiction
Universal jurisdiction
Universal jurisdiction or universality principle is a principle in public international law whereby states claim criminal jurisdiction over persons whose alleged crimes were committed outside the boundaries of the prosecuting state, regardless of nationality, country of residence, or any other...
, granting their courts ubiquitous domain. Therefore a person seeking to take an action against a person in another country will need to seek assistance from the judicial authorities in the other country. This is of course assuming the court in his own country has jurisdiction to hear the case matter. As a hypothetical example, Alice in the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
wishes to sue Roberto in Argentina
Argentina
Argentina , officially the Argentine Republic , is the second largest country in South America by land area, after Brazil. It is constituted as a federation of 23 provinces and an autonomous city, Buenos Aires...
. Alice issues her summons
Summons
Legally, a summons is a legal document issued by a court or by an administrative agency of government for various purposes.-Judicial summons:...
in a U.S. court, and must then petition a court in Argentina by means of a letter rogatory to serve the process on Roberto.
The use of letters rogatory for purposes of service of process to initiate court action is now largely confined to the Americas, as between countries in Europe, Asia, and North America, service of process is effected without resort to letters rogatory, under the provisions of the Hague Service Convention
Hague Service Convention
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty which was signed in The Hague on 15 November 1965 by members of the Hague Conference on Private International Law...
.
Taking of evidence
Another reason why a court may require assistance from a foreign court is to obtain evidence from a witness. This evidence may be to answer questions relevant to the determination of an issue of fact, or for disclosureDiscovery (law)
In U.S.law, discovery is the pre-trial phase in a lawsuit in which each party, through the law of civil procedure, can obtain evidence from the opposing party by means of discovery devices including requests for answers to interrogatories, requests for production of documents, requests for...
of documents.
Courts only have power to subpoena
Subpoena
A subpoena is a writ by a government agency, most often a court, that has authority to compel testimony by a witness or production of evidence under a penalty for failure. There are two common types of subpoena:...
witnesses from within their own country. So for example Alice in the U.S. could not summon Jean from France
France
The French Republic , The French Republic , The French Republic , (commonly known as France , is a unitary semi-presidential republic in Western Europe with several overseas territories and islands located on other continents and in the Indian, Pacific, and Atlantic oceans. Metropolitan France...
to the U.S. courthouse. Instead the U.S. court would issue a letter rogatory to a French court, who would then examine Jean in France, and send a deposition
Deposition (law)
In the law of the United States, a deposition is the out-of-court oral testimony of a witness that is reduced to writing for later use in court or for discovery purposes. It is commonly used in litigation in the United States and Canada and is almost always conducted outside of court by the...
back to the requesting court.
Insofar as requests to United States courts are concerned, the use of letters rogatory for requesting the taking of evidence has been replaced in large part by applications under 28 U.S.C. section 1782, or Section 1782 Discovery
Section 1782 Discovery
Section 1782 of Title 28 of the United States Code is a federal statute that allows a litigant to a legal proceeding outside the United States to apply to an American court to obtain evidence for use in the non-US proceeding...
.
In many cases, the witness is willing to provide the testimony. However, the target court may compel the testimony of a witness who is unwilling to appear.
Generally, the target court will agree to the request unless it violates a policy of the target jurisdiction. For example, in the United States, it is usually appropriate in a civil case to depose every available witness, while in Canada
Canada
Canada is a North American country consisting of ten provinces and three territories. Located in the northern part of the continent, it extends from the Atlantic Ocean in the east to the Pacific Ocean in the west, and northward into the Arctic Ocean...
, you may only depose one witness from each party. However, a Canadian court would most likely agree to the pre-trial deposition of a witness who could be compelled to testify in the United States.
Conventions
In the past, letters rogatory could not usually be transmitted directly between the applicable courts, and had to be transmitted via consular or diplomaticDiplomacy
Diplomacy is the art and practice of conducting negotiations between representatives of groups or states...
channels, which could make the whole process very slow. There have been various international conventions in regard to service of process and taking of evidence. One of the earliest conventions to simplify the procedure of Letters Rogatory was the 1905 Civil Procedure Convention, signed at The Hague
The Hague
The Hague is the capital city of the province of South Holland in the Netherlands. With a population of 500,000 inhabitants , it is the third largest city of the Netherlands, after Amsterdam and Rotterdam...
. Drafted only in French
French language
French is a Romance language spoken as a first language in France, the Romandy region in Switzerland, Wallonia and Brussels in Belgium, Monaco, the regions of Quebec and Acadia in Canada, and by various communities elsewhere. Second-language speakers of French are distributed throughout many parts...
, it was only ratified by 22 countries. Later conventions, created after the institution of the Hague Conference on Private International Law
Hague Conference on Private International Law
The Hague Conference on Private International Law is the preeminent organisation in the area of private international law....
, drafted in both English
English language
English is a West Germanic language that arose in the Anglo-Saxon kingdoms of England and spread into what was to become south-east Scotland under the influence of the Anglian medieval kingdom of Northumbria...
and French commanded more support. The Hague Service Convention
Hague Service Convention
The Convention on the Service Abroad of Judicial and Extrajudicial Documents in Civil or Commercial Matters, more commonly called the Hague Service Convention, is a multilateral treaty which was signed in The Hague on 15 November 1965 by members of the Hague Conference on Private International Law...
, ratified in 1965, enabled designated authorities in each of the signatory states to transmit documents for service to each other, bypassing the diplomatic route. This convention has been ratified by 60 states including the United Kingdom
United Kingdom
The United Kingdom of Great Britain and Northern IrelandIn the United Kingdom and Dependencies, other languages have been officially recognised as legitimate autochthonous languages under the European Charter for Regional or Minority Languages...
and the United States
United States
The United States of America is a federal constitutional republic comprising fifty states and a federal district...
, neither of whom had ratified the 1905 convention. The Hague Evidence Convention
Hague Evidence Convention
The Convention on the Taking of Evidence Abroad in Civil or Commercial Matters -- more commonly referred to as the Hague Evidence Convention, is a multilateral treaty which was drafted under the auspices of the Hague Conference on Private International Law. The treaty was negotiated in 1967 and...
, ratified in 1970, formalised procedures for taking of evidence. This convention has been ratified by 43 states. For situations exclusively among Member States of the European Union
Member State of the European Union
A member state of the European Union is a state that is party to treaties of the European Union and has thereby undertaken the privileges and obligations that EU membership entails. Unlike membership of an international organisation, being an EU member state places a country under binding laws in...
, two regulations, 1348/2000
Council Regulation (EC) No. 1348/2000
Council Regulation No. 1348/2000 of 29 May 2000 on the service in the Member States of judicial and extrajudicial documents in civil or commercial matters is a European Union regulation in the field of judicial cooperation. It allows service of judicial documents from one member state to another...
and 1206/2001
Council Regulation (EC) No. 1206/2001
Council Regulation No. 1206/2001 of 28 May 2001 on cooperation between the courts of the Member States in the taking of evidence in civil or commercial matters is a European Union regulation in the field of judicial cooperation. It allows taking of evidence from one member state to another without...
superseded the two Hague Conventions. These two regulations apply to each of the Member States of the European Union with the exception of Denmark
Denmark
Denmark is a Scandinavian country in Northern Europe. The countries of Denmark and Greenland, as well as the Faroe Islands, constitute the Kingdom of Denmark . It is the southernmost of the Nordic countries, southwest of Sweden and south of Norway, and bordered to the south by Germany. Denmark...
which opted out
Opt-outs in the European Union
In general, the law of the European Union is valid in all of the twenty-seven European Union member states. However, occasionally member states negotiate certain opt-outs from legislation or treaties of the European Union, meaning they do not have to participate in certain policy areas...
.
For countries not signed up to any convention, the letter rogatory is still used. So for example, a plaintiff
Plaintiff
A plaintiff , also known as a claimant or complainant, is the term used in some jurisdictions for the party who initiates a lawsuit before a court...
in the Netherlands
Netherlands
The Netherlands is a constituent country of the Kingdom of the Netherlands, located mainly in North-West Europe and with several islands in the Caribbean. Mainland Netherlands borders the North Sea to the north and west, Belgium to the south, and Germany to the east, and shares maritime borders...
which is signed up to the Hague Service Convention would still need to issue a letter rogatory to Brazil
Brazil
Brazil , officially the Federative Republic of Brazil , is the largest country in South America. It is the world's fifth largest country, both by geographical area and by population with over 192 million people...
, as the latter has not signed the Convention.
The European Convention on Mutual Assistance in Criminal Matters (CETS No. 030), open for signature by the Members of the Council of Europe, in Strasbourg, on 20 April 1959, stipulates that parties agree to afford each other the widest measure of mutual assistance with a view to gathering evidence, hearing witnesses, experts and prosecuted persons, etc.
The Convention sets out rules for the enforcement of letters rogatory by the authorities of a party ("requested party") which aim to procure evidence (audition of witnesses, experts and prosecuted persons, service of writs and records of judicial verdicts) or to communicate the evidence (records or documents) in criminal proceedings undertaken by the judicial authorities of another party ("requesting party").
The Convention also specifies the requirements that requests for mutual assistance and letters rogatory have to meet (transmitting authorities, languages, refusal of mutual assistance).
External links
- Preparation of Letters Rogatory advice from the U.S. State Department
- United States Attorneys' ManualUnited States Attorneys' ManualThe United States Attorneys' Manual is a looseleaf text designed as a quick and ready reference for United States Attorneys and other employees of the United States Department of Justice responsible for the prosecution of violations of federal law...
: Letters Rogatory. - Inter-American Convention on Letters Rogatory
- Hague Service Convention
- Hague Evidence Convention